***Just Off the Press***

CUPE Ontario and the Council of Canadians present...

Say bye to buy local:

How secret trade deals threaten our local economies, jobs and the environment and weaken your community

We’d like to invite you to join an important public discussion on new Canadian trade agreements and the impact they will have on local economies and local communities.

We are currently suffering multiple crises – an economic crisis that threatens our jobs and livelihoods, an environmental crisis that threatens our habitat, and an energy crisis that demands we move away from fossil fuels and a reliance on long-distance trade. 

In times like this we need our local, provincial and federal governments to be innovative and responsive to the communities they represent, as well as the international community we are all part of. We need them to recognize, like so many people already do, that many of the solutions to all these crises are going to be local solutions. 

Unfortunately, the Ontario government is busy signing and endorsing interprovincial and international agreements that will restrict what provinces and municipalities can do to protect the environment, save existing jobs and create new ones, strengthen public services and support local economies. These agreements say that local solutions are “barriers” to trade and investment and must therefore be eliminated.

The purpose of this tour is to talk about three specific trade agreements that will have significant impacts on Ontario communities: 

1.      The Ontario–Quebec Trade and Cooperation Agreement that Premiers McGuinty and Charest negotiated in secret and signedon September 11, 2009

2.      The Canada–European Union Comprehensive Economic and Trade Agreement, negotiations for which start in Ottawa, October 19

3.      A proposed Canada–U.S. bilateral procurement agreement covering subnational governments that could be announced any day

The impact of these internal and international agreements will be broad and often incompatible with social goods, such as stimulating local economies, maintaining a universal and publicly funded health care system, and protecting the environment. Ontarians have a right to discuss and debate these agreements, and to have the power to modify, expand or cancel them if they’re not in the province’s interests.

Please join us at any of the following events:

Ottawa – October 13
7-9 p.m. St. Joseph's Catholic Church 174 Wilbrod St., Ottawa (At Cumberland North of Laurier)
Guest speakers: Sid Ryan (CUPE) Maude Barlow (Council of Canadians)
Contact: Carleen Pickard, Council of Canadians, cpickard@canadians.org, 613-233-2773

Kitchener – October 19
7-9 p.m. Lyle S. Hallman Faculty of Social Work Building 120 Duke Street West, Kitchener, ON
Guest speakers: Sid Ryan (CUPE) Maude Barlow (Council of Canadians)
Contact: (Kitchener-Waterloo) Shannon Balla, shannon.balla@gmail.com, 519-954-3299
(Guelph) David Sills, dsills@sympatico.ca, 519-827-9138

Toronto – October 20
7-9 p.m. VICTORIA COLLEGE CHAPEL BUILDING - 91 Charles St. West, Toronto (2nd floor room 213)
Guest speakers: Sid Ryan (CUPE) Maude Barlow (Council of Canadians)
Contact: Chris Smallwood, csmallwoodcdn@gmail.com, 416-895-7602

Sudbury – October 26
7-9 p.m. RADISSON HOTEL Downtown Sudbury 85 Ste. Anne Rd, Sudbury, ON P3E 4S4
Guest speakers: Sid Ryan (CUPE) Maude Barlow (Council of Canadians)

Windsor – October 27
7-9 p.m. CLUB ALOUETTE 2418 Central Ave., Windsor, ON, N8W 4J3
Contact: Doug Hayes, 519-735-8319, dhayes18@cogeco.ca

Kingston – November 17
7-9 p.m. DAYS INN HOTEL 33 Benson St., Kingston, ON K7K 5W2
Guest speakers: Sid Ryan (CUPE) Maude Barlow (Council of Canadians)
Contact: Michelle Dorey, 613-542-5643, michelle.dorey@empire.ca

London – November 18
7-9 p.m. AEOLIAN HALL 795 Dundas St. East London, ON N5W 2Z6
Guest speakers: Sid Ryan (CUPE) Maude Barlow (Council of Canadians)
Contact: Cory Morningstar, elle-provocateur@sympatico.ca

Hamilton – November 19
7-9 p.m. East Hamilton ROYAL CANADIAN LEGION (Branch 58) 1180 Barton St. East, Hamilton
Guest speakers: Sid Ryan (CUPE) Maude Barlow (Council of Canadians)
Contact: (St. Catherine's) Sharon Root, 905-685-1025, saroot@sympatico.ca
(Welland) Fiona McMurran, fmcmurran@cogeco.ca, 905-788-0756

All events are free of charge. Hope to see you there!
More information: http://www.canadians.org/events/index.html#ON 
The Council of Canadians / www.canadians.org /1-800-387-7177
CUPE Ontario / www.cupe.on.ca /416 299-9739

 

Wal-Mart's closing of unionized store breached Labour Code, arbitrator finds  
By closing its first unionized outlet in North America in 2005 and throwing some 190 employees out of work less than a year after union certification was granted and before a first contract could be achieved, U.S.-based retail giant Wal-Mart violated a prohibition in the Quebec Labour Code against changing "the conditions of employment" of employees after an application for certification had been filed, a Quebec arbitrator has found. The arbitrator held that it did not suffice for Wal-Mart to invoke unspecified "business reasons" for the store closing and the resulting layoffs, without explaining satisfactorily what those reasons were.

The complex and ongoing legal saga began in August 2004 when the Quebec Labour Relations Board certified Local 503 of the United Food and Commercial Workers Union as the bargaining agent for employees at the Wal-Mart store in Jonquière, about 470 kilometres north of Montreal. After trying unsuccessfully to negotiate a first contract with Wal-Mart, the union applied to Quebec's Minister of Labour in February 2005 for appointment of an arbitrator. On February 9, 2005, the same day that the Minister announced acceptance of the union's request, Wal-Mart declared that it was closing the store effective May 6, 2005. The company informed the Quebec government that the closing was "for business reasons." Wal-Mart subsequently closed the store ahead of schedule, on April 29, 2005, allegedly to head off anticipated labour protests.

Among other legal measures that it took in response, the union filed a grievance, claiming that closing the store and putting the employees out of work in the circumstances contravened s.59 of the Quebec Labour Code, which provides that "[f]rom the filing of a petition for certification and until the right to lock out or to strike is exercised or an arbitration award is handed down, no employer may change the conditions of employment of his employees without the written consent of the petitioning association and, where such is the case, certified association."

In an August 30, 2006 decision, Arbitrator Jean-Guy Ménard found that he did not have jurisdiction to hear the case because the real subject matter of the grievance was an allegation of reprisals for union activity contrary to sections 12, 13, and 14 of the Code, and this fell squarely within the jurisdiction of the Quebec Labour Relations Board. However, this decision was overturned on judicial review in November 2007 by a Quebec Superior Court judge who ruled that Ménard could not determine without a hearing on the merits that closing the store and terminating the jobs of the affected employees did not in fact change their conditions of employment contrary to s.59.

In a September 18, 2009 decision on the merits, Arbitrator Ménard noted that "in practical terms, it is first incumbent on the union to show that there was a change in the conditions of employment by proving in principle the pre-existing conditions and the change that occurred following the filing of the request for certification. Once this step is completed, the employer has the burden of establishing on a preponderance of the evidence that it did not contravene s.59 of the Code [because] the decision was made in the normal course of business." Ménard added that "it is now established in jurisprudence and in doctrine that a layoff or a dismissal can give rise to a change in the conditions of employment."

Consequently, the arbitrator held, "the employer must justify its decision by proving that it was made in the normal course of its operations and in the absence of any inequitable, abusive or discriminatory consideration."

Ménard found that, to the contrary, "the union has duly established that there was a change in the conditions of employment of the employees by means of the mass layoffs that were announced to them on February 9, 2005 and implemented effective April 29, 2005.... [Wal-Mart] believes that it has viably invoked [the defence of "business as usual"] by suggesting that the layoffs are explained simply by the closing of its establishment. With all respect, I am not of this view."

The arbitrator reasoned that "s.59 of the Labour Code creates a particular period in the life of a business. From the time an application for certification was filed, the employer did not have full discretion.... It still had the power to manage the activities of its store, but it was required to explain decisions such as layoffs that constituted changes in the conditions of employment of the employees…. It did not suffice to say that it was a 'business decision' over which [Wal-Mart] had exclusive power."

In the arbitrator's view, "the layoffs were not unrelated to [Wal-Mart's] decision to close its books. There is in effect reason to believe that what explains the cessation of operations also explains the layoffs. But the fact that the reasons for the one may be related to those which support the other does not appear to me to block the recourse set out in s.59. And even if these reasons were identical, I do not see what could relieve [Wal-Mart] from providing them with regard to the layoffs which are the focus of the present case."

Arbitrator Ménard determined that, "in the absence of [Wal-Mart] having done this, I am obliged to conclude that there was an illegal change in the conditions of employment of the employees by means of the layoffs that they suffered as of April 29, 2005." Declaring the layoffs illegal, Ménard retained jurisdiction to impose remedies if the parties were unable to reach an agreement.

Wal-Mart has already announced that it will apply for judicial review of the arbitrator's decision. Andrew Pelletier, Vice-President of Corporate Affairs, said that "[i]f Wal-Mart had just wanted to close the store … that store would have closed from the moment that it became certified by the union – but that's not what happened." Pelletier maintained that the closing decision was made only after multiple bargaining sessions, because there was "no way" the store could afford to meet the union's demands.

Meanwhile, the Supreme Court of Canada is considering whether Wal-Mart's closing of the Jonquière store was an unfair labour practice and a violation of the employees' Charter rights to freedom of association. In January, the Court heard appeals from two Quebec Court of Appeal decisions favourable to Wal-Mart on these issues, and reserved judgment. No date for a decision has been announced.

Travailleurs et travailleuses unis de l'alimentation et du commerce, section locale 503 v. La Compagnie Wal-Mart du Canada
Jean-Guy Ménard, Arbitrator
September 18, 2009